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Jade Financial Pty Ltd v Siaea QCAT 22
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Jade Financial Pty Ltd v Siaea  QCAT 22
JADE FINANCIAL PTY LTD
MCDO 50016 of 2018
Other minor civil dispute matters
14 January 2019 ex tempore
14 January 2019
Adjudicator Alan Walsh
The Application is dismissed.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL – where New Zealand creditor purportedly assigned New Zealand credit contract to Applicant – where credit contract regulated by New Zealand Statute – where Respondent debtor moved to Australia – where Applicant an Australian corporation – where no Response filed to minor debt claim – where Applicant requested default judgement – where request refused – where matter ordered to hearing – where Respondent did not attend hearing – where Australian director of Applicant ordered to attend the hearing in person – where he failed to attend – where evidence he knew nothing about the assignment –– where New Zealand director did not attend hearing either – where no affidavit evidence of directors filed – where New Zealand resident manager filed affidavit – where he attended hearing by telephone with leave – where manager authorised by New Zealand director to represent Applicant and sign documents on its behalf
EVIDENCE – PROOF – STANDARD OF PROOF – GENERALLY – where issues of jurisdiction and exercise of jurisdiction arose – whether Applicant discharged onus of proof resting with it – whether right to recover debt of New Zealand resident validly assigned to Applicant – whether credit contract and general terms and conditions proved – whether New Zealand Law applying to credit
contract proved – whether minor debt liability of Respondent established – whether credit contract interest rate clause a penalty or enforceable – whether contract permitted recovery of debt in Australian dollars – whether Applicant assignee acquired any greater contractual rights than assignor had – whether claim within Tribunal jurisdiction – whether Tribunal should exercise jurisdiction in circumstances
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 12, s 13, s 14, s 28, s 29, s 32, s 50, s 57, s
62, s 90, s 93, s 95, s 97, s 126, s 127
Queensland Civil and Administrative Tribunal Rules
2009 (Qld) r 54(1), r 54(4), r 54(5)(b)
Brayalei Pty Ltd v ABC Scaffolds Pty Ltd  QCAT 299
Parcelvalue SA by its Australian Agent, Australian Commerce Systems Pty Ltd v Ozepost  QCAT 463
APPEARANCES & REPRESENTATION:
Scott Martins by telephone
REASONS FOR DECISION
- On the 12th of September 2018 I refused a request for default decision by the Applicant against the Respondent. I had ordered that the application filed the 16th of January 2018, that is, the minor debt application, be listed for hearing at Beenleigh on notice to the parties; that, in terms of order 3, the Applicant file with the Tribunal and serve on the Respondent all documents on which it wished to rely to prove its claim no later than 4pm on the 3rd of October 2018.
- In paragraph 4, I ordered that the Respondent’s address be recorded as 14 Venture Street, Park Ridge, QLD 4125; and order 5 was that QCAT Registry mail a copy of the minor debt application and those orders and notice of hearing to the Respondent at that address. I note that, in terms of an affidavit of service of Melissa McKenzie, a commercial sub–agent, on the 20th of November 2018 she served Ms Siaea, in effect by proxy of someone called Bobby Helatanu, with a letter from Jade Financial dated the 18th of October 2018 and an affidavit filed on the 2nd of November 2018.
- That is a copy of the affidavit of Scott Martins. Mr Martins has attended this afternoon’s hearing by telephone. The affidavit was sworn on the 18th of October 2018 at Papatoetoe in New Zealand in the presence of Rahule Chupa, a JP. The refusal of the request for a default decision and the consequent orders made on the 12th of September 2018 were based upon reasons which I read into the record in this matter of Siaea, MCDO50016 of 2018, at Southport on the 12th of September 2018. A transcript of my reasons may be obtained upon request from Auscript or alternatively a CD recording of those reasons may be obtained by the parties on request through the Tribunal’s Brisbane Registry.
- None of the concerns which I raised in those reasons have abated. On the 15th of October 2018 I ordered that the Applicant, Jade Financial, must on or by 4pm on the 25th of October file with the Tribunal at Beenleigh and serve on the Respondent an affidavit of the Australian director of the Applicant and all documents relevant to (a) establish that the Tribunal has jurisdiction and should exercise it; and (b) prove its claim against the Respondent. Order 2 of the orders of the 15th of October was that the Australian director of the Applicant appear in person at the next hearing. I should add, though, that the next hearing was adjourned, the next hearing essentially is today. I note that the Australian director of the Applicant has not appeared, in contravention of that order.
- The relevant director, as appears from Mr Martins’ affidavit, is one Peter John Moolenschott. See paragraph 3 of the affidavit sworn at Papatoetoe on the 18th of October 2018. He, according to Mr Martins’ affidavit, has no knowledge of this matter. He is the only resident Australian director for the company. It is his home address in Australia that is given as the registered office of the company. The company’s main business location is apparently in New South Wales. The address given in the minor debt claim, at the foot of it, is Jade Financial Pty Ltd self– represented, PO Box 3810, Australia Fair, QLD 4215. That is not the registered office of the Applicant.
- In paragraph 3 of Mr Martins’ affidavit, he says the company is directed by Simon Craig Oldham, resident in New Zealand. Mr Oldham is not here. He has not given any evidence. One would expect that at least one of the directors of the Applicant would have filed an affidavit. The fact that no affidavit had been filed by a director of the company previously led to my ordering on the 15th of October that the Australian director appear in person. It is clear to me, and I accept Mr Martins’ evidence in this respect, that he (Mr Martins) is a manager of New Zealand operations, having knowledge of the matters the subject of this proceeding, that he is not a director; and neither of the directors, that is, the Australian director Moolenschott or the New Zealand resident director Mr Oldham, delegated their directorship of Jade Financial Pty Ltd to Mr Martins for the conduct of these proceedings.
- No explanation is given as to why Mr Oldham has not supplied any affidavit material, except that I infer from exhibit A to the application, a letter from Jade Financial Pty Ltd dated 16th October 2018, that Mr Oldham thought that he could lawfully delegate directorship of the Applicant for purposes of proving its claim in this matter to Mr Martins, who is a New Zealand resident and by leave of the Tribunal who has attended today’s hearing, and did previously, by telephone. The delegation to Mr Martins, in the words of exhibit A of authority to prepare and sign legal documents on behalf of the company, cannot be construed as a lawful delegation of a non–delegable duty of a director of the company, either Mr Oldham or Mr Moolenschott.
- Likewise, authorisation of a manager of the company to prepare for, and appear at, the hearing cannot constitute delegation of a directorship of the company for the purpose. A curious feature of exhibit A, as I mentioned to Mr Martins, is that he (Oldham) is in New Zealand, yet exhibit A is a letter dated the 16th of October 2018 on Jade Financial letterhead with its PO Box 3801 at Australia Fair, QLD 4215. There is a signature in blue ink that purports to be that of Mr Oldham. How could he sign, in Australia at Australia Fair, this letter which is exhibit A when he was not here in the first place? There is no explanation. Perhaps the letter was sent to New Zealand and signed there by Mr Oldham and sent back. I do not know. There is no evidence as to what occurred in that respect.
- The Applicant’s minor debt claim is beset with a number of insurmountable obstacles. If I, that is, the Tribunal, have jurisdiction, I am convinced that I should not exercise it. Or if I do exercise it in the alternative, I am convinced that the Applicant, which bears the onus to prove its claim, has not proved its claim in this matter. Firstly, the cause of action purportedly assigned to the Australian entity is a cause of action which arose in New Zealand upon a contract entitled “Consumer Credit Contract.” The document is a copy of the relevant contract. It is exhibit B. It runs to three pages. The original is not here. The original and all other relevant documents, based upon what Mr Martins told me, reside at the offices of Aotea Finance Limited in New Zealand, whose particulars and address appear in exhibit C, a letter dated the 20th of May 2015 purportedly addressed to Jade Financial Pty Ltd, Australia Fair.
- That letter says:
Thank you for payment of the agreed sum (sic). We now assign this debt to your company. Please find enclosed all of the relevant documents concerning this account.
- The letter contradicts what Mr Martins told me. All of the relevant documents, it seems to me, reside still at the offices of Aotea. The problems of Jade Financial Pty Ltd extend further than that. Mr Martins could not tell me what the agreed sum was. I am assuming, under New Zealand law just as under Australian law, that there has to be some consideration for an assignment. No consideration has been proved in this case. That calls into question the validity of the assignment in the first place. Mr Martins did say that the sum referred to in the letter was uncertain but to the best of his belief somewhere between five and twenty cents in the dollar. But the point is this evidence is speculative; there is no stated basis for the assertion. That is the first difficulty. The second difficulty is that the contract itself appears to be incomplete. That is exhibit B. Not only is the document a copy of the contract, not the original, but it appears to be incomplete in that, on the third page, immediately above the signature section the following appears:
Customer, in signing, you acknowledge your agreement comprises the disclosure statement and (sic) the general terms enclosed, and that a copy of the agreement was disclosed to you before you signed it.
- The document appears to comprise four pages of which only three have been provided to this Tribunal in copy form. The document in standard form provides for initialling. It is only initialled or signed, apparently by the debtor, on the first page. There is no signature on any of the subsequent pages. There is absolutely no signature at all, or initialling, on behalf of the creditor or lender, Aotea Finance Limited, on any of those pages. As I say, the fourth page is missing. More pertinently, though, the first three pages, although the face page is entitled “Consumer Credit Contract,” appear to me to be in the nature of a disclosure statement and not to include the general terms referred to as an enclosure. In other words, insofar as onus is concerned, the contract has not been proven either by production of the complete original or, at very least, a photocopy of the original together with the general terms which were incorporated in the contract as appears at page 3.
- A further problem for the Applicant in this case is that the contract is, or was, at all material times regulated by New Zealand law, amongst other things, the Credit Contracts and Consumer Finance Act 2003. That law has not been proven in this case, nor the law of limitation in New Zealand. I make the point that where the contract is signed, the assignee acquires no better rights in law than the assignor had under the terms of the contract. No satisfactory explanation has been given as to why these proceedings could not have been brought in New Zealand, as against the debtor, Siaea, even though she lived or resided at the relevant time in Australia, with a view then to registering a decision ascertaining the debtor’s liability in New Zealand dollars in a Court of competent jurisdiction in Australia for enforcement here under the reciprocal enforcement legislation between the two countries.
- It is true that Mr Martins did say that the method chosen in this case of assigning the debt to an Australian entity was designed to circumvent the much higher fee payable in the event of registration of a New Zealand judgment in Australia. But that explanation, albeit in relation to the financial consequence of proceeding in New Zealand in the first instance and then registering judgement in Australia, does not of itself justify the alternative course adopted in this case. All the more so where, as I say, the Tribunal is being asked to enforce New Zealand legislation which is unknown to this Tribunal. This Tribunal is a Tribunal of limited resource and cases such as this, involving the interpretation and application of foreign law, unnecessarily use up the Tribunal’s limited resource.
- Next, the difficulty confronting the Applicant in this case is the fact that I am not satisfied on the evidence filed that notice of the assignment was ever actually received by Rosemary Siaea. It is true that Mr Martins, in his affidavit at paragraph 7, says:
The Respondent was notified of the assignment by the Applicant.
- But there is no proof of that; there is merely proof of an attempt at notification. And Mr Martins’, whose evidence I accept, was only that there were attempts. There was an attempt at service of notification of the assignment but that does not establish the actual notification of the assignment to Siaea if it was valid in the first place. The next difficulty confronting the Applicant is that it seeks judgment in Australian dollars. As I pointed out to Mr Martins, the relevant contract, to the extent that it is before me, would require as between New Zealand resident parties, that is a New Zealand corporation and a New Zealand resident at the time, repayment of the debt in New Zealand dollars.
- There is nothing in the original contract, indeed the original is not before me, but there is nothing in the incomplete contract before me to the effect that Siaea, the debtor, agreed that, in the event of default and her moving to another country her liability would then be ascertained by a conversion rate of that country’s currency, relative to the Australian dollar, whether it be at the time of the assignment or at the time of original contracting or at the time when the liability fell due under the contract.
- It seems to me that the Applicant could not unilaterally impose upon the Respondent a liability to pay a New Zealand debt in a foreign currency. The liability, if any, would be to repay the balance of the indebtedness in New Zealand dollars. That is not claimed here. In other words, there is no contractual basis for the bringing of a claim for repayment in Australian dollars of an original loan in New Zealand dollars subsequently assigned to an Australian company.
- I would also briefly mention, in an illustration of the application of New Zealand law, that there is nothing before me, either in terms of the relevant applicable New Zealand law or in respect of the percentage of interest claimed, that an annual interest rate of
39.5 per cent for the whole of the contract could legitimately be recovered and not be construed as a penalty. Reference to interest is in the disclosure statement on the first page. I merely flag that as one of a number of inquiries which would need to be made in ascertaining whether or not the Applicant has discharged its onus; but the Applicant has not got to first base for the various reasons to which I have already referred.
- I should note for completeness that Rosemary Siaea is not here to oppose this Application, but the mere absence of a Respondent does not prove an Applicant’s case where the Applicant bears the onus and has to discharge it on the balance of probabilities. I am not satisfied, on the balance of probabilities, that a liability of the Respondent to the Applicant in debt has been established. Firstly, on the insufficient evidence to which I have referred and, secondly, to the extent that this Tribunal may have jurisdiction, it is, in my view, inappropriate that the Tribunal should exercise it in these circumstances. For those reasons, the order is that the application is dismissed. A copy of the decision will be sent to the parties in the mail.
- Published Case Name:
Jade Financial Pty Ltd v Siaea
- Shortened Case Name:
Jade Financial Pty Ltd v Siaea
 QCAT 22
Adjudicator Alan Walsh
14 Jan 2019